A. K. H., et al v. City of Tustin, et al

Filing

FILED OPINION (WILLIAM A. FLETCHER, MARY H. MURGUIA and JOHN B. OWENS) AFFIRMED; REMANDED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [10125721]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

A. K. H., a minor by and through her
Guardian Ad Litem Elizabeth
Landeros; MARIA CERDA REYES;
BENITO HERRERA; H. H., a minor by
and through her Guardian Ad Litem
Eloisa Gutierrez; A. H., a minor by
and through her Guardian Ad Litem
Eloisa Gutierrez; B. H., Jr., a minor
by and through his Guardian Ad
Litem Eloisa Gutierrez,
Plaintiffs-Appellees,

No. 14-55184
D.C. No.
8:12-cv-01547JLS-RNB

OPINION

v.
CITY OF TUSTIN; OFFICER
VILLARREAL,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted March 7, 2016
Pasadena, California
Filed September 16, 2016

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A. K. H. V. CITY OF TUSTIN
Before: William A. Fletcher, Mary H. Murguia,
and John B. Owens, Circuit Judges.
Opinion by Judge W. Fletcher

SUMMARY*

Civil Rights
The panel affirmed the district court’s denial of qualified
immunity to a police officer and remanded in an action
brought pursuant to 42 U.S.C. § 1983 alleging that the officer
used unlawful deadly force when he shot and killed Benny
Herrera during an attempted investigatory stop.
The panel held that the government’s interests were
insufficient to justify the use of deadly force. The panel
noted that the crime at issue was a domestic dispute that had
ended before the police became involved, that Herrera did not
pose an immediate threat to the safety of the officers or
others, that although Herrera did not comply with the
officer’s commands, he did not attempt to flee, and that the
officer escalated to deadly force very quickly and without
warning. The panel concluded that viewing the evidence in
the light most favorable to the plaintiffs, the intrusion on
Herrera’s interest substantially outweighed any interest in
using deadly force. The panel further held that the officer
violated clearly established Fourth Amendment law when he
shot and killed Herrera.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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A. K. H. V. CITY OF TUSTIN

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COUNSEL
M. Lois Bobak (argued), Robert L. Kaufman, and Daniel K.
Spradlin, Woodruff Spradlin & Smart, APC, Costa Mesa,
California, for Defendant-Appellant Officer Villareal.
No appearance by Defendant-Appellant City of Tustin.
Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of
Dale K. Galipo, Woodland Hills, California, for PlaintiffsAppellees.

OPINION
W. FLETCHER, Circuit Judge:
Defendant Osvaldo Villarreal, a police officer in Tustin,
California, fatally shot Benny Herrera during an attempted
investigatory stop. As will be more fully described below,
Herrera was on foot. Officer Villarreal was in his patrol car
and had just driven up beside Herrera. Herrera was in the
middle of the roadway, moving in the direction of traffic. His
left hand was free and visible; his right hand was in his
sweatshirt pocket. Villarreal commanded Herrera to take his
hand out of his pocket. Less than a second later, just as
Herrera’s hand came out of his pocket, Villarreal shot him
twice, killing him. Herrera was unarmed. Villarreal does not
claim that he saw, or thought he saw, a weapon in Herrera’s
hand.
In a § 1983 suit alleging excessive force, Officer
Villarreal moved for summary judgment. The district court
denied the motion. In this interlocutory appeal, we affirm.

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A. K. H. V. CITY OF TUSTIN
I. Factual and Procedural Background

On December 17, 2011, at approximately 3:00 p.m., Hilda
Ramirez called 911. She reported that her ex-boyfriend,
Benny Herrera, had “jacked [her] phone.” Ramirez stated
that she was not hurt, that she did not need paramedics, and
that her children were “fine.” Initially, Ramirez told the 911
police dispatcher that Herrera stole her phone by “just
grabb[ing] it from [her] hand.” A short time later, Ramirez
modified her story and said that, while the two were arguing
about her phone, Herrera “did end up hitting [her] in the
head.”
Ramirez told the police dispatcher that Herrera had not
used a weapon to take her phone, that Herrera did not carry
any weapons, and that Herrera had never been violent with
her before. Ramirez told the dispatcher that Herrera was
“walking down El Camino Real . . . towards Red Hill.” She
explained that because he did not have a car and had no
friends in the area, Herrera was probably trying to a catch a
bus back to his home.
The dispatcher sent out a general call to Tustin police
officers. The dispatcher initially reported:
[A] DV [domestic violence] just occurred . . .
The RP [reporting party] states her exboyfriend, Benny Herrera, male Hispanic, 31
years, 5’8”, thin build, bald head, black
hooded sweatshirt was inside her apartment,
took her cell phone, he left. He is now
walking on ECR [El Camino Real] towards
Red Hill.

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The dispatcher repeated Ramirez’s report, saying that Herrera
was heading down El Camino Real “to catch the bus” because
he had “no access to a vehicle and no friends in the area.”
After Ramirez modified her story, the dispatcher updated the
officers, explaining that “originally the RP claimed that there
was no physical violence, now she’s claiming that the male
subject hit her in the head.” The dispatcher reported that
Herrera “is not known to carry weapons.” She also reported
that Herrera was “shown in-house to be a member of the
Southside Gang” and that there was possibly a $35,000 traffic
warrant out for Herrera’s arrest. The dispatcher reported,
further, that Herrera was on “parole for 11350,” a reference
to a state drug possession crime. See Cal. Health & Safety
Code § 11350.
Driving a large police SUV, Officer Brian Miali was the
first to spot Herrera. As Ramirez had reported, Herrera was
walking down El Camino Real. A video taken by Miali’s
dashboard camera shows Herrera walking on the right
shoulder of the road in the same direction as traffic. On
Herrera’s immediate right was a high wall, preventing him
from escaping to the right. As he came up to Herrera, Miali
turned on the red lights of his SUV. Herrera put his right
hand in his sweatshirt pocket and started alternately to skip,
walk, and run backwards facing Miali. As Herrera did so, he
moved away from the right shoulder toward the middle of the
road. Miali drew his gun and opened his driver’s side door
while driving forward slowly. Herrera kept ahead of Miali’s
SUV, sometimes at distances of less than ten or fifteen feet.
Using the loudspeaker of his SUV, Miali told Herrera three
times to “get down.” Herrera did not comply. He stayed on
his feet and continued to move down the road at about the
same speed as Miali’s SUV.

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A. K. H. V. CITY OF TUSTIN

Officer Villarreal was driving on El Camino Real behind
Officer Miali. A civilian sedan was directly behind Miali,
separating Miali from Villarreal’s vehicle. Villarreal testified
in his deposition that he did not hear Miali tell Herrera to “get
down.” The civilian car moved onto the shoulder to the right,
and Villarreal moved left into the opposite lane. He drove his
patrol car up beside Herrera, and slightly forward of Miali’s
SUV, in order to “box” Herrera in and cut off his avenue of
escape. Villarreal held his gun in his hand. His front
passenger window was open. The video taken by Miali’s
dashboard camera shows that Herrera was already moving to
the left, toward Villarreal’s patrol car, as Villareal pulled up
beside Herrera. Villareal immediately shouted, “Get your
hand out of your pocket.” Herrera removed his right hand
from his sweatshirt pocket in an arcing motion over his head.
Just as Herrera’s hand came out of his pocket, Villarreal fired
two shots in rapid succession. Villarreal did not give any
warning that he would shoot, and Officer Miali later stated
that he was not expecting the shots. Both officers admitted
that they never saw anything in either of Herrera’s hands.
Officer Villarreal testified in his deposition that he shot
Herrera because he “believe[ed] that he had a weapon and he
was going to use that weapon on [him].” Villarreal testified
that Herrera’s right hand was “concealed” in his sweatshirt
pocket.” Miali testified in his deposition that “there was
something in there that appeared to be heavy.” Villarreal
testified that Herrera “charged [him] or shortened the distance
or closed the distance at [his] passenger window very
quickly.” Villarreal said that probably “three to five seconds”
passed between when he commanded Herrera to remove his
hands from his pocket and when he shot. The recording from
Villarreal’s dashboard camera, however, shows that the
command and the shots were almost simultaneous, separated

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by less than a second. The total elapsed time from when
Miali first encountered Herrera to when Villarreal shot him
was less than a minute.
It is undisputed that Herrera was unarmed. Ramirez had
reported to the police dispatcher that Herrera did not carry
weapons. The dispatcher had reported to the officers that
Herrera “is not known to carry weapons.” The only “heavy”
object in Herrera’s sweatshirt pocket was a cell phone.
Relatives of Herrera (“Plaintiffs”) filed suit under
42 U.S.C. § 1983 against Officer Villarreal and the City of
Tustin alleging, inter alia, that Villarreal used excessive force
against Herrera. Villarreal moved for summary judgment
based on qualified immunity. The district court denied the
motion. Villarreal brought an interlocutory appeal.
II. Appellate Jurisdiction
The parties dispute whether we have jurisdiction to hear
this interlocutory appeal. A denial of summary judgment is
not ordinarily appealable because it is not a “final decision.”
See 28 U.S.C. § 1291; Plumhoff v. Rickard, 572 U.S.
—,134 S. Ct. 2012, 2018 (2014). However, there is an
exception to the final judgment rule for an appeal denying a
motion for summary judgment based on qualified immunity.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
When analyzing an appellate court’s jurisdiction over an
appeal from a denial of a motion for summary judgment
based on qualified immunity, the Supreme Court
distinguishes between “factual” and “legal” questions. We
have jurisdiction over “legal” but not “factual” interlocutory
appeals. Plumhoff, 134 S. Ct. at 2019; Behrens v. Pelletier,

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A. K. H. V. CITY OF TUSTIN

516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S. 304,
313 (1995).
Officer Villarreal argues that, even viewing the evidence
in the light most favorable to the plaintiffs, his actions did not
violate the Fourth Amendment and that the district court
therefore erred in denying him qualified immunity. A
defendant who appeals a denial of qualified immunity on the
ground that his “conduct did not violate the Fourth
Amendment and, in any event, did not violate clearly
established law” has “raise[d] legal issues” that may be
properly heard in an interlocutory appeal. Plumhoff, 134 S.
Ct. at 2019; see also Behrens, 516 U.S. at 312–13. Villarreal
has brought such an appeal, and we have jurisdiction.
III. Standard of Review
In reviewing a summary judgment ruling, “we assume the
version of the material facts asserted by the non-moving party
to be correct.” Jeffers v. Gomez, 267 F.3d 895, 905 (9th Cir.
2001) (emphasis omitted) (quoting Schwenk v. Hartford,
204 F.3d 1187, 1195 (9th Cir. 2000)). We review “de novo
the district court’s determination regarding qualified
immunity.” Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th
Cir. 2001).
IV. Discussion
To determine whether Officer Villarreal is entitled to
summary judgment based on qualified immunity, we ask two
questions. First, viewing the facts in the light most favorable
to the plaintiffs, did Villarreal use excessive force in violation
of the Fourth Amendment? Bryan v. MacPherson, 630 F.3d
805, 823 (9th Cir. 2010). Second, if Villarreal used excessive

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force, did he violate a clearly established right? Id. We
address each question in turn.
A. Excessive Force
We analyze excessive force claims under the Fourth
Amendment. Graham v. Connor, 490 U.S. 386, 388 (1989);
Tennessee v. Garner, 471 U.S. 1, 7 (1985). “The question is
whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham,
490 U.S. at 397 (citation omitted). To determine the
reasonableness of an officer’s actions, we “balance the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.”
Garner, 471 U.S. at 8 (quoting United States v. Place,
462 U.S. 696, 703 (1983)) . We evaluate “the totality of the
circumstances,” id. at 9, paying careful attention to factors
such as “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at
396. The “most important” of these factors is “whether the
suspect posed an ‘immediate threat to the safety of the
officers or others.’” Mattos v. Agarano, 661 F.3d 433, 441
(9th Cir. 2011) (en banc) (quoting Smith v. City of Hemet,
394 F.3d 689, 702 (9th Cir. 2005) (en banc)). Deadly force
is permissible only “if the suspect threatens the officer with
a weapon or there is probable cause to believe that he has
committed a crime involving the infliction or threatened
infliction of serious physical harm.” Garner, 471 U.S. at 11.

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The “nature and quality of the intrusion” by Officer
Villarreal on Herrera’s Fourth Amendment interests was
extreme. Id. at 8. “The intrusiveness of a seizure by means
of deadly force is unmatched.” Id. at 9. The use of deadly
force implicates the highest level of Fourth Amendment
interests both because the suspect has a “fundamental interest
in his own life” and because such force “frustrates the interest
of the individual, and of society, in judicial determination of
guilt and punishment.” Id.
The government’s interests were insufficient to justify the
use of deadly force. First, the “crime at issue,” Graham,
490 U.S. at 396, was a domestic dispute that had ended before
the police became involved. We recognize that some
domestic disputes can pose a serious danger to police officers
and others, see Mattos, 661 F.3d at 450, but we have held that
domestic disputes do not necessarily justify the use of even
intermediate let alone deadly force. For example, we denied
qualified immunity in Smith to officers who used pepper
spray and a dog to subdue and arrest a suspect, even though
the suspect was reported to have “hit[]” or become “physical”
with his wife. Smith, 394 F.3d at 702–03. The use of force
is especially difficult to justify when “the domestic dispute is
seemingly over by the time the officers begin their
investigation.” George v. Morris, 736 F.3d 829, 839 (9th Cir.
2013) (denying qualified immunity in an excessive force case
partly because the victim of the domestic disturbance “was
unscathed and not in jeopardy when deputies arrived”);
Smith, 394 F.3d at 702–03 (denying qualified immunity partly
because, by the time the officers arrived, the suspect “was
standing on his porch alone and separated from his wife”).
Here, when the officers came upon Herrera, he had left
Ramirez’s apartment and was walking down a road at some
distance from the apartment.

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Second, Herrera did not “pose[] an immediate threat to
the safety of the officers or others.” Graham, 490 U.S. at
396. It is clear that the domestic altercation was over, and
that Herrera posed no current threat to the safety of Ramirez.
She had told the police dispatcher that Herrera had taken her
phone, had hit her on the head, and had left on foot to catch
a bus. It is also clear in retrospect that Herrera posed no
threat to the safety of the officers, as he in fact had no
weapon; but the relevant question for purposes of qualified
immunity is whether Officer Villarreal could reasonably have
believed that Herrera posed such a threat. Viewing the
evidence in the light most favorable to Plaintiffs, we conclude
that he could not.
When Officer Miali first arrived on the scene, Herrera
was walking on the right-hand shoulder of the road. The
officers had little, if any, reason to believe that Herrera was
armed. Ramirez had told the police dispatcher that Herrera
was not carrying any weapons, and the dispatcher had told the
officers that Herrera was “not known to carry weapons.”
When Miali started following Herrera in his SUV, Herrera
put his right hand in the pocket of his sweatshirt. He then
alternated among skipping, walking, and running, mostly
facing backward toward Miali, without displaying a weapon.
Villarreal admitted that he never saw a weapon.
We recognize that the dispatcher had told the officers that
Herrera was a member of the “Southside Gang,” may
possibly have had a $35,000 traffic warrant, and was on
parole for a drug possession conviction. Further, the officers
had been told that Herrera had stolen Ramirez’s cell phone
and hit her on the head, and had had prior run-ins with law
enforcement, including at least one conviction. But the traffic
warrant and drug possession conviction were relatively minor

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crimes, neither of which entailed violence or gun possession,
and the dispatcher’s information included a statement that
Herrera was not known to be armed.
Third, even if Herrera was “actively resisting” or
“attempting to evade” an investigatory stop, and even if we
equate for present purposes an arrest and an investigatory
stop, this factor only slightly favors the government.
Graham, 490 U.S. at 396; see also Chew v. Gates, 27 F.3d
1432, 1442 (9th Cir. 1994). Herrera did not stop as soon as he
saw the red lights on Officer Miali’s SUV, and he did not
comply with the officer’s commands to “get down.” Herrera,
however, never attempted to cross the road and flee, and he
continued to move at about the same speed as Officer Miali,
while facing him much of the time. Nor did Villareal actually
hear Miali tell Herrera to “get down.” Viewing the evidence
in the light most favorable to Herrera, this factor does not
weigh heavily in the government’s favor in determining
whether the amount of force used was justified. See Deorle,
272 F.3d at 1280 (describing the Graham factors as “simply
a means by which to determine objectively ‘the amount of
force that is necessary in a particular situation’” (quoting
Graham, 490 U.S. at 396–97)).
Finally, and perhaps most important, Officer Villarreal
escalated to deadly force very quickly.
Villarreal
commanded Herrera to take his hand out of his pocket
immediately upon driving up beside him. Villarreal then shot
Herrera just as he was taking his hand out of his pocket. Less
than a second elapsed between Villarreal commanding
Herrera to take his hand from his pocket and Villarreal
shooting him. Villarreal neither warned Herrera that he was
going to shoot him, nor waited to see if there was anything in
Herrera’s hand. In total, less than a minute had elapsed

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between when Miali first came upon Herrera and when
Villarreal shot him.
Roger Clark, a twenty-seven year veteran of the Los
Angeles Police Department, submitted an expert witness
declaration. Clark concluded that the “use of deadly force by
Officer Villarreal against Mr. Herrera was excessive and
unreasonable.” The reasons supporting his conclusion
included that “[t]here was no serious crime reported”;
“[t]here was no indication that a weapon was involved”;
“[t]he dispatch information to the officers was that the
suspect was not known to carry weapons”; “Mr. Herrera was
only being detained, not arrested”; “Mr. Herrera complied
with Officer Villarreal’s command to take his hand out of his
pocket”; “[w]hen Mr. Herrera took his hand out of his pocket
upon request, there was nothing in his hand”; “Officer
Villarreal conceded that he never saw a gun or anything that
looked like a gun in Mr. Herrera’s hand”; “Officer Villarreal
gave no warning that he was going to shoot”; “Mr. Herrera
never verbally threatened the officers”; and “Officer
Villarreal had other reasonable options.”
Based on the totality of circumstances, and balancing the
interests of the two sides, see Garner, 471 U.S. at 8, we
conclude, viewing the evidence in the light most favorable to
the plaintiffs, that the intrusion on Herrera’s interests
substantially outweighed any interest in using deadly force.
We therefore conclude, so viewing the evidence, that Officer
Villarreal’s fatal shooting of Herrera violated the Fourth
Amendment.

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B. Clearly Established Right

Although we conclude Officer Villarreal’s actions
violated the Fourth Amendment, we may affirm the district
court’s denial of qualified immunity only if “the right which
was violated was clearly established at the time of the
violation.” Espinosa v. City & Cty. of San Francisco,
598 F.3d 528, 532 (9th Cir. 2010) (citing Saucier v. Katz,
533 U.S. 194, 201 (2001)). To determine whether Officer
Villarreal violated clearly established law, we look to “cases
relevant to the situation [Villarreal] confronted,” Brosseau v.
Haugen, 543 U.S. 194, 200 (2004) (quotation marks omitted),
mindful that there need not be a case “directly on point.”
Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir.
2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). Viewing the evidence in the light most favorable to
the plaintiffs, we conclude that Villarreal violated clearly
established Fourth Amendment law when he shot and killed
Herrera.
The Supreme Court’s decision in Garner is instructive.
Neither the crime at issue in Garner nor the crime in this case
involved the use of serious or deadly force. In Garner, the
police suspected Garner of committing burglary; here, the
officers had been told that Herrera reportedly hit his exgirlfriend on the head and stole her cell phone. Garner fled
from police even though an officer told him to “halt”; Herrera
did not comply with Miali’s commands to “get down”
(although Officer Villarreal had not heard the commands).
Id. at 4. Most important, viewing the facts in the light most
favorable to Plaintiffs, Officer Villarreal in this case had no
more reason to suspect that Herrera was armed than did the
officer in Garner. The officer in Garner stated that the
suspect “appeared to be unarmed” but that he “could not be

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certain that was the case.” Id. at 20. The Court
explained,“Restated in Fourth Amendment terms, this means
[the officer] had no articulable basis to think Garner was
armed.” Id. The same is true here. The dispatcher expressly
told the officers that Herrera was “not known to carry
weapons.” Villarreal never saw a gun. He could provide no
basis for his belief that Herrera was armed except to say that
Herrera had one hand “concealed.”
Conclusion
It has long been clear that “[a] police officer may not
seize an unarmed, nondangerous suspect by shooting him
dead.” Garner, 471 U.S. at 11. Viewing the evidence in the
light most favorable to the plaintiffs, that is precisely what
Officer Villarreal did here. We affirm the district court’s
denial of qualified immunity and remand for further
proceedings consistent with this opinion.
AFFIRMED and REMANDED.